June 25, 2007

OK, so you're the defendant and you've just won summary judgment in a consumer case. What do you do next? Why not move for after-the-fact certification of a non-opt-out class of all similarly situated consumers, and imposition of summary judgment on all of them? What could possibly go wrong with that?

There's no rule that says a defendant can't seek class treatment. Unfortunately, there's a fair amount of law now saying that class certification comes before merits determinations, not after. There's absolutely no authority that allows a defendant to impose summary judgment on a post-hoc class of plaintiffs. Which is why, while this was a nice try by Lyon Management Group, Inc. down in California's Fourth Appellate District, it looks like this is a no go.

Thanks to Wage Law (which blogs on wage and hour issues from the employee perspective) for the pick-up.

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

At first blush, that looks like a fairly typical list of protected categories, and a law against discrimination by businesses against those enumerated categories. That's what the defendant in Sisemore thought; it refused to finance the purchase of a home because the home was to be used as a day care facility. It then argued that since the statutory list didn’t include this form of discrimination, the act didn’t apply. This defense didn’t work.

The California cases make it pretty clear that the protection is much broader than that:
“The Act expresses a state and national policy against discrimination on arbitrary grounds. [Citation.] Its provisions were intended as an active measure measure that would create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments. [Citations.]” Angelucci v. Century Supper Club (2007) ___Cal 4th ___, ___ [2007 WL 1557339. at p. *2].

In earlier cases, the courts have held the act to prohibit business discrimination based on :

A customer’s association with a male with long hair and “unconventional” dress;

Having children;
and

Status as a police officer (when the ACLU tried to kick a cop out of a meeting).

Sisemore has a good discussion of the Supreme Court and Court of Appeal cases demonstrating the very broad application of the act.

Some other time, when I'm feeling like writing an off-topic post, I'll talk about Jesse Unruh, the act's primary author. One of the last great characters in California politics. But like I said, that's for another day.